Opinion
CV116009212.
12-19-2012
Anthony HOOKS v. The PRIDE OF CONNECTICUT LODGE et al.
UNPUBLISHED OPINION
JOSEPH M. SHORTALL, Judge Trial Referee.
Mary Busque's birthday party at the Elks Lodge in New Britain ended badly for Anthony Hooks: he was shot and seriously injured by another person in attendance while he was leaving the party. He has brought suit against Ms. Busque and The Pride of Connecticut Lodge 1437 B.P.O.E. (lodge) for their alleged negligence in providing insufficient security for guests at the party. In addition to these defendants and the alleged shooter, Eric Figueroa, Mr. Hooks has sued Mark DePinto, an off-duty New Britain police officer providing security at the party, William Gagliardi, the New Britain chief of police at the time of the events in question, and the city of New Britain (city). The city's liability is said to arise out of the alleged pecuniary benefit it gained from Ms. Busque's obligation to pay the city to provide security at the party and from its vicarious liability for the claimed negligence of Mr. DePinto and Mr. Gagliardi.
The city and Messrs. DePinto and Gagliardi (collectively, defendants) have moved for summary judgment, claiming qualified and governmental immunity. The specific counts attacked by the pending motion are as follows. Counts three and four are against Mr. DePinto in his private and official capacities, respectively, and sound in negligence. Count five is against the city pursuant to General Statutes § 52-557n(a)(1)(A) and alleges that the city is vicariously liable for the negligent acts of Mr. DePinto acting in his official capacity. Count six is against the city pursuant to General Statutes § 52-557n(a)(1)(B) and claims that the city is vicariously liable because it derived a pecuniary benefit from supplying security at the event. Count seven is against the city pursuant to General Statutes § 7-465, alleging that the city must pay any sums for which Mr. DePinto becomes liable for acts or omissions in his official capacity as a police officer. Count eight is against Mr. Gagliardi and alleges that he was negligent in failing to assess properly the security needs of the event pursuant to city ordinances. Counts nine through eleven are also against the city and mirror counts five through seven except that they allege that the city is liable for Mr. Gagliardi's actions. Finally, count twelve is against Mr. DePinto in his individual capacity and sounds in recklessness.
Section 52-557n provides in relevant part: " (a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit ... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
Section 7-465 provides in relevant part: " (a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ... for physical damages to person ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment ..."
I
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). " [T]he ‘ genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
The defendants argue that they are entitled to governmental immunity pursuant to § 52-577n(a)(2)(B) and the common law because the acts complained of by Mr. Hooks are discretionary in nature. They also contend that, under General Statutes § 7-284, a municipality has discretion in deciding whether to provide security for an event and to what degree. Last, these defendants maintain that the incident was caused by an intervening criminal act and therefore, regardless of duty, there is no evidence to link any alleged breach with the actual or proximate cause of the plaintiff's injuries. In support of their motion, the defendants provide an uncertified deposition transcript excerpt of Tyler Hooks and a signed affidavit by Mr. DePinto. In response, Mr. Hooks argues that summary judgment should be denied because there are genuine issues of material fact concerning whether the defendants' failure to provide safe exit/entry from the lodge violates ministerial duties imposed by city ordinances, whether the defendants are entitled to immunity given the pecuniary nature of the arrangement and whether, even assuming that the defendants' conduct was discretionary, the identifiable person-imminent harm exception applies to Mr. Hooks. In support, Mr. Hooks has provided his own signed affidavit, an uncertified transcript excerpt of his deposition testimony, an uncertified transcript excerpt from Mr. DePinto, and an uncertified transcript excerpt from Tyler Hooks.
Section 7-284 provides in full: " Police protection at places of amusement. When police protection is necessary or required at any boxing bout or wrestling match, place of public amusement, sport contest or hockey, baseball or basketball game, or any other exhibition or contest, which is being held or is to be held in any municipality, the amount of such protection necessary shall be determined and shall be furnished by (1) the chief or superintendent of the police department in any municipality having an organized or paid police department or (2) the commanding officer of the state police troop having jurisdiction over the municipality in any municipality having a resident state trooper. Any such protection shall be paid for by the person or persons operating, conducting or promoting such game, exhibition or contest."
Because the court finds that the defendants are entitled to qualified and governmental immunity, the issue of proximate cause need not be addressed.
Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006). In the present case, both sides have submitted uncertified deposition transcripts in connection with the present motion and neither party has objected. The court chooses to consider the submissions.
II
Municipal employees are protected by qualified immunity. " When a municipal employee is sued, he or she may assert qualified immunity as a common-law defense." Spears v. Garcia, 263 Conn. 22, 37, 818 A.2d 37 (2003). " Over the years ... [t]he doctrine of [qualified] immunity has provided some exceptions to the general rule of tort liability for municipal employees ... Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts." (Citation omitted.) Id., at 36. " A municipal employee's immunity for the performance of discretionary acts is, however, qualified by three recognized exceptions: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ... and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted .) Id.
Governmental immunity for a municipality is provided for in § 52-557n. " Although the statute contains no express exceptions to governmental immunity for discretionary acts, [the Connecticut Supreme Court has] assume[d], without deciding, that § 52-557n(a)(2)(B) codifies the common law" as it relates to the exceptions for immunity of its employees' discretionary acts. (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 105, 931 A.2d 859 (2007). Thus, the " employee immunity for discretionary acts is identical to the municipality's immunity for its employees' discretionary acts under § 52-557n." Myers v. Hartford, 84 Conn.App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004). See also Coe v. Board of Education, 301 Conn. 112, 121, 19 A.3d 640 (2011) (" [T]his court has recognized that the common-law exceptions to liability for municipal employees are codified under § 52-557n(a) ... Therefore, the analysis is the same [for both the municipality and the employees]").
" The issue of governmental immunity is simply a question of the existence of a duty of care, and [our Supreme Court] has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). " Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ... Discretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury ... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion ... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Citations omitted; internal quotation marks omitted.) Id., at 614-15.
III
Mr. Hooks first contends that the defendants are not entitled to governmental or qualified immunity because their acts and omissions reflect ministerial duties. The defendants respond that Mr. Hooks has failed to produce evidence demonstrating what non-discretionary duties were violated. " Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ... there are cases where it is apparent from the complaint ... [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to ... § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint ... Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." (Internal quotation marks omitted.) Bonnington v. Westport, 297 Conn. 297, 307-08, 999 A.2d 700 (2010).
In the present case, the complaint alleges that the defendants failed to follow mandatory protocols and comply with city ordinances. However, no evidence has been presented that the defendants were obligated to enforce New Britain city ordinance (ordinance) 5-37 or any other ordinance or protocol in a prescribed manner without the exercise of judgment or discretion.
The Appellate Court analyzed a statute similar to ordinance 5-37 to determine whether it created a ministerial duty in Mills v. The Solution, LLC, 138 Conn.App. 40, 50 A.3d 381 (2012). There, the statute at issue was § 7-284. Section 7-284 states in relevant part: " When police protection is necessary or required at any ... place of public amusement ... the amount of such protection necessary shall be determined and shall be furnished by (1) the chief or superintendent of the police department in any municipality having an organized or paid police department ..." In the present case, ordinance 5-37 states that " [t]he owner, lessee or other person in charge of any public hall shall be required to have a regular or supernumerary member of the city police force in attendance at every public performance or gathering held therein ... (b) Police duties. The policeman shall preserve public order, enforce all state laws and city ordinances, and ensure that all exits remain unlocked and all fire escapes are ready for use during the time of the public performance or gathering . (c) Additional policemen. The chief of police may assign such additional policemen to any public hall as he deems reasonably necessary ..." Additionally, the facts of Mills were similar to facts in the present case. In Mills, the estate of a patron who was fatally shot at a carnival brought an action against a city and its police department, among others, alleging negligence in how they carried out their police duties on the day in question. The court found that the defendants' performance of the duty to furnish police protection pursuant to § 7-284, " necessarily involve[d] the exercise of discretion because the statute, as well as our common law, vests police officials with the authority to determine the amount of protection necessary." Mills v. The Solution, LLC, supra, 138 Conn.App. at 52. Additionally, the court stated that " [o]ur Supreme Court recently held that for the purposes of § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists." (Internal quotation marks omitted.) Id.
In the present case, the plain language of ordinance 5-37 gives discretion to the defendants both in preserving order and in assigning the amount of police presence. How exactly an officer " shall preserve public order" and " enforce all state laws and city ordinances" necessarily invokes discretion. Similarly, the statement that, " [t]he chief of police may assign such additional policemen to any public hall as he deems reasonably necessary" clearly implies discretion. In his affidavit, Mr. DePinto states, " [t]here is no formal or informal policy, written or oral that the [c]ity of New Britain Police Department is supposed to follow when deciding the appropriate level of police protection or security for the [c]ity of New Britain." Mr. Hooks has provided no evidence to the contrary. The only part of ordinance 5-37 that may arguably be considered ministerial is the mandate that officers " ensure that all exits remain unlocked and all fire escapes are ready." However, even that phrase does not prescribe the manner in which that is to be accomplished, and that phrase is inapplicable to the present case because the allegations in the complaint do not involve the ability of guests to exit the facilities in light of an emergency, nor the condition of exits or fire escapes. Mr. Hooks' argument that the defendants' alleged " failure to inspect the exits and entrances of the [l]odge to ensure safe entry and exit ..." somehow is related to the shooting is unpersuasive. Additionally, his contention that the defendants " failed to enforce city and state ordinances concerning assault, illegal possession of firearms, threats and physical violence ..." is unsupported by any evidence of noncompliance with any ministerial duties regarding the same. Consequently, the court finds that the defendants' alleged acts and omissions were discretionary in nature for purposes of this motion.
IV
Next, Mr. Hooks argues that genuine issues of material fact exist regarding whether the city is entitled to governmental immunity given the pecuniary nature of the arrangement. Specifically, he argues that because New Britain city ordinance (ordinance) 5-20 requires a private person to pay for police presence to host an event at a public hall within the city, that the city cannot then be permitted to " hide behind a veil of immunity." The defendants respond that the present case is distinguishable from cases where a pecuniary interest was found because, here, the city did not rent out the facilities at issue.
Again, the Appellate Court in Mills v. The Solution, LLC, supra, 138 Conn.App. at 56, dealt with similar allegations that the municipal defendants were deriving a pecuniary benefit by requiring the carnival promoters to use and to pay for extra duty police officers as security for the carnival. Id. The statute there at issue, § 7-284, provided in relevant part: " When police protection is necessary or required ... Any such protection shall be paid for by the person or persons operating, conducting or promoting such game, exhibition or contest." The court found that " [t]here [was] no evidence that the city billed for police protection under § 7-284 for the particular benefit of its inhabitants, nor [was] there evidence that it derived revenue in excess of its costs." Id. The court then reasoned that " [o]ur Supreme Court, in the context of a first amendment challenge to § 7-284, determined that the statute serves the government's interest in both public safety and financial responsibility ... Absent § 7-284, state and local governments would be without authority to seek compensation for police services furnished to private entrepreneurs ... The purpose of § 7-284 is to maintain the public peace while also transferring the financial burden to private event sponsors ... Billing private event promoters for necessary police protection pursuant to § 7-284 is not done for the purpose of deriving a corporate profit, but for public safety and financial responsibility ... The city, in complying with § 7-284, acts as the agent of the state in carrying out its public purposes ... Accordingly, we conclude that the city was acting in a governmental, not proprietary, function by requiring the carnival promoters to use and to pay for extra duty police officers as security for the carnival." (Citations omitted; internal quotation marks omitted.) Id., at 56-57.
Similarly, in the present case, there is no evidence that the city billed for police protection under ordinance 5-20 for the particular benefit of its inhabitants, nor is there evidence that it derived revenue in excess of its costs. Moreover, the court is unable to distinguish ordinance 5-20 from § 7-284, the statute in Mills, under which the Appellate Court determined the statutory purpose to be maintaining the public peace while transferring the financial burden to private event sponsors. Consequently, the court holds that the city did not derive a pecuniary benefit for purposes of any exception to governmental immunity.
V
Next, Mr. Hooks argues that, even assuming that the defendants' conduct was discretionary and, therefore, that the immunity defense is available to them, genuine issues of material fact exist concerning whether the identifiable person-imminent harm exception applies in the instant case. The defendants respond that there is no evidence regarding any knowledge of an imminent threat to Mr. Hooks and that, even if the court finds evidence of such sort, it would only come from a self-serving affidavit filed by the plaintiff, which is not enough to raise a genuine issue of material fact.
" [T]his exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state ... Our courts have applied the exception when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm ... The failure to establish any one of the three prongs precludes the application of the identifiable person subject to imminent harm exception." (Citations omitted; internal quotation marks omitted.) Merritt v. Bethel Police Dept., 120 Conn.App. 806, 812, 993 A.2d 1006 (2010).
" With respect to the identifiable victim element, our Supreme Court has stated that this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims ... [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care ... In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminence of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." (Internal quotation marks omitted.) Id., at 812-13, citing Grady v. Somers, 294 Conn. 324, 350-51, 984 A.2d 684 (2009). Additionally and importantly, " [o]ur Supreme Court explained in Grady that we have not recognized any additional classes of foreseeable victims outside of the public school context, and, even in such a context, such a class has only been recognized where attendance has been compulsory." Id., at 814.
In the present case, there is and could be no allegation that Mr. Hooks or others were statutorily mandated or compelled to attend the party at the lodge. Consequently, the court concludes that he was not a member of a narrowly defined class of foreseeable victims.
Nevertheless, even if Mr. Hooks was not a member of a class of foreseeable victims, it is still possible that he was an identifiable person subject to imminent harm if the defendants recognized that their failure to intervene would subject the plaintiff to the harm. " [T]he decisions [of our Supreme Court] reveal only one case wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception to qualified immunity. See Sestito v. Groton, [178 Conn. 520, 522-23, 423 A.2d 165 (1979) ] (facts presented jury question in case wherein on-duty town police officer watched and witnessed ongoing brawl in bar's parking lot but did not intervene until after participant had shot and killed plaintiff's decedent). Sestito appears, however, to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly, because [a]n allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm." (Internal quotation marks omitted.) Merritt v. Bethel Police Dept., supra, 120 Conn.App. at 815-16, quoting Grady v. Somers, supra, 294 Conn. at 353-54.
In Merritt the plaintiff alleged that her decedent attended a party at a town Masonic Temple where he was subsequently shot and killed. Merritt v. Bethel Police Dept., supra, 120 Conn.App. at 808. The plaintiff further alleged that gang members were present; that a scuffle had occurred shortly before the shooting; that the police were aware that prior criminal activity had taken place there; and that the police were monitoring the activities taking place there at the time of the shooting. Id., at 808-09. Nevertheless, the Appellate Court found that " [n]othing in these allegations demonstrates that [the officers or] police department knew the decedent or of his presence at the Masonic Temple or that they had any prescient knowledge that he would be shot in the early morning hours of November 27, 2004. There were no allegations that the police knew that gang members were armed and that they were going to shoot the decedent when he left the party. There simply are no allegations in the plaintiff's complaint that would fit the decedent within the exception to governmental immunity for an identifiable person subject to imminent harm. Accordingly, the court properly granted the defendants' motion to strike." Id., at 816.
There is nothing in the record here to distinguish this case from Merritt. For example, no evidence has been presented to suggest that the defendants knew of this specific plaintiff's presence at the lodge or that the defendants knew or should have known that Mr. Hooks would be shot in the early morning hours of February 7, 2009. Mr. DePinto did testify that he was told that someone was armed and that he also investigated the matter, but nowhere has it even been alleged that he knew or should have known that Mr. Hooks was in danger of being shot. Consequently, the court must conclude that there are no genuine issues of material fact regarding whether the plaintiff was an identifiable person subject to imminent harm.
VI
Finally, the court will address counts three and twelve, which target Mr. DePinto's alleged negligence and recklessness while acting as a " private security guard" at the party. Amended Complaint (# 112), count three, ¶ 8; count twelve, ¶ 1 (May 9, 2011). These counts seek recovery for Mr. DePinto's alleged acts and omissions not while acting as a New Britain police officer but as a private citizen: " DePinto's duties and responsibilities as a private security guard at the premises did not cause him to act in a capacity as a police officer until after he learned that the plaintiff had been shot on the premises that DePinto had been hired to secure." Id., count three, ¶ 9; count twelve, ¶ 1. The qualified immunity available to him while acting as a police officer is simply not available to him while acting as a private citizen. Therefore, the motion for summary judgment, premised as it is entirely on the doctrine of governmental immunity, must be denied as to count three.
As to count twelve, the reckless count, Mr. DePinto argues that the allegations would not support a finding of reckless conduct on his part by a jury. " Under the common law, [i]n order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts ... [Such conduct] is more than negligence, more than gross negligence ... [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ..." (Citations omitted; internal quotation marks omitted.) Manifold v. Ragaglia, 102 Conn.App. 315, 324-25, 926 A.2d 38 (2007). The court disagrees.
The essence of the allegations of count twelve is that Mr. DePinto abandoned his post and ignored his duties to provide a safe environment for the party guests so that he could, himself, participate in the party and, as the complaint so delicately puts it, " enjoy[ing] the company of adult female guests on the second floor instead of controlling the crowd and protecting the teens ..." Amended complaint, count twelve, ¶ 9(b) (May 19, 2011). It is a legitimate jury question whether such conduct, if it can be proven, amounts to recklessness. Thus, summary judgment must be denied as to count twelve.
VII
The motion for summary judgment is GRANTED as to counts four through eleven. Judgment enters for the defendants on those counts. The motion for summary judgment is DENIED as to counts three and twelve.